Digested Cases on Public International Law

7/28/2019 Digested Cases on Public International Law

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Public International Law (Dean Roy): Case Digests

Anastacio, Beron, Calinisan, Fernandez, Gana,

Lopez, Mendiola, Morada, Rivas, Sarenas

1) COMPAGNIEDE COMMERCEETDE NAVIGATION DEXTREME ORIENTVS. THE HAMBURG AMERIKAPACKETFACHT ACTIEN GESELLSCHAFT - Anastacio(SUPER LONG CASE!!!!)

FACTS:- HAMBURG owned a steamship named SAMBIA, which proceeded to the port of Saigon and was taking

the cargo belonging to COMPAGNIE. Apparently, there were rumors of impending war between Germanyand France and other nations of Europe. The master of the steamship was told to take refuge at a neutralport (because Saigon was a French port). So, to stop that, COMPAGNIE asked for compulsory detention ofhis vessel to prevent its property from leaving Saigon. However, the Governor of Saigon refused to issue anorder because he had not been officially notified of the declaration of the war.

- The steamship sailed from Saigon, and was bound for Manila, because it was issued a bill of health by theUS consul in Saigon. The steamship stayed continuously in Manila and where it contends it will becompelled to stay until the war ceases. No attempt on the part of the defendants to transfer and deliver thecargo to the destinations as stipulated in the charter party. That BEHN, MEYER and COMPANY (agent ofHAMBURG in manila) offered to purchase the cargo from COMPAGNIE, but the latter never received thecable messages so they never answered. (obviously)

- When a survey was done on the ship, it was found that the cargo was *weevily and heating* (whatever thatmeans), so BEHN asked for court authority to sell the cargo and the balance to be dumped at sea. Theproceeds of the sale were deposited in the court, waiting for orders as to what to do with it.

- BEHN wrote COMPAGNIE again informing the latter of the disposition which it made upon the cargo.COMPAGNIE answered that it was still waiting for orders as to what to do.

- COMPAGNIE of course wanted all the proceeds of the sale to be given to them (damages for thedefendants failure to deliver the cargo to the destinations Dunkirk and Hamburg), while defendantscontend that they have a lien on the proceeds of the sale (amount due to them because of the upkeep andmaintenance of the ship crew and for commissions for the sale of the cargo).

- The trial court ruled in favor of the plaintiffs.- On appeal, the defendants made the ff: assignments on appeal (that the court had no jurisdiction, that the

fear of capture was not force majeure, that the court erred in concluding that defendant is liable fordamages for non-delivery of cargo, and the value of the award of damages)

- On appeal, the plaintiffs also contended that the court erred in not giving the full value of damages (kasibinawas un expenses ng mga defendants)

ISSUE: WoN the master of the steamship was justified in taking refuge in Manila (therefore being the cause of thenon-delivery of the cargo belonging to the plaintiffs)

- COMPAGNIE contends that the master should have in mind the accepted principles of public internationallaw, the established practice of nations, and the express terms of the Sixth Hague Convention (1907), themaster should have confidently relied upon the French authorities at Saigon to permit him to sail to his portof destination under a laissez-passeror safe-conduct, which would have secured both the vessel and hercargo from all danger of capture by any of the belligerents. The SHIPOWNER contends that the master wasjustified in declining to leave his vessel in a situation in which it would be exposed to danger of seizure bythe French authorities, should they refuse to be bound by the alleged rule of international law.

HELD:

- The Court held that after examining the terms and conditions of the convention that at the outbreak of thepresent war, there was no such general recognition of the duty of a belligerent to grant "days of grace" and"safe-conducts" to enemy ships in his harbors, as would sustain a ruling that such alleged duty wasprescribed by any imperative and well settled rule of public international law, of such binding force that itwas the duty of the master of the Sambia to rely confidently upon a compliance with its terms by theFrench authorities in Saigon.

- It was nothing but a *pious wish* at least, adherence to the practice by any belligerent could not bedemanded by virtue of any convention, tacit or express, universally recognized by the members of the


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society of nations; and that it may be expected only when the belligerent is convinced that the demand foradherence to the practice inspired by his own commercial and political interests outweighs any advantagehe can hope to gain by a refusal to recognize the practice as binding upon him.

- The Court concluded that under the circumstances surrounding the flight of the Sambia from the port of

Saigon, her master had no such assurances, under any well-settled and universally accepted rule of publicinternational law, as to the immunity of his vessel from seizure by the French authorities, as would justifyus in holding that it was his duty to remain in the port of Saigon in the hope that he would be allowed tosail for the port of destination designated in the contract of affreightment with a laissez-passeror safe-conduct which would secure the safety of his vessel and cargo en route.

- The Court also held that it was the duty of the ship-owner to sell, and not to just transship the cargo, due tothe fact of the perishable nature of the cargo (rice) and that he was justified in the delay of acting, so as toascertain reasonably what course of action to take.

- RE: jurisdiction. It cannot be raised on appeal for the first time.

2) COLUMBIAVS. PERU - Beron

Facts:

In 1949, a Peruvian political leader, Victor Raul Haya de la Torre was given asylum in the Colombian Embassylocated in Peru. The Colombian ambassador requested the government of Peru to allow de la Torre to leave thecountry on the ground that the Colombian government qualified de la Torre as a political refugee. Peru refused toaccept the right of Colombia to characterize unilaterally the nature of de la Torre's offense.

Colombia based its claim on certain international agreements among Latin-American states and in addition onAmerican international law.

Issue:W/n Colombia, on its own, can decide on the character of the offense of de la Torre, a citizen of Peru, with suchdecision binding upon the government of Peru...

Held:NO. The Colombian government must prove that the rule (American international law more particularly regional or

local custom peculiar to Latin-American States...) invoked by it is accordance with a constant and uniform usagepracticed by the States in question, and that this usage is the expression of a right appertaining to the State grantingasylum and a duty incumbent on the territorial state (in this case, Peru..).

Colombia claims that this regional customs has been codified by the Monteviedo Convention, but this argumentmust fail. The limited number of States which ratified this Convention reveals the weakness of this argument. TheColombian Government failed to prove the existence of such customs as invoked by it. Even if such customs exist,it could not be invoked against Peru which has repudiated it by refraining from ratifying the MontevideoConventions.

The court further stated in its decision that the only solution to a dispute between states adhering to different set ofcustoms is to go back in history to a time when a rule accepted by both groups of States exist and continue to applythat rule.

3) NICARAGUAVS. US - Calinisan c/o SC notes Tanquilit

FACTS:

In 1946, the US made a declaration containing the following reservation: this declaration shall remain in force for aperiod of 5 years and thereafter until the expiration of 6 months after notice may be given to terminate thisdeclaration.


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In 1984, the US deposited with the UN Sec Gen a notification referring to the 1946 declaration, stating: theaforesaid declaration shall not apply to disputes with any Central American State or arising out of or related toevents in Central America, any of which disputes shall be settled in such manner as the parties to them may agree.

Nicaragua filed a claim against the US for damages in connection with military and paramilitary activities allegedlysupported by the US in and against Nicaragua. The US argues that pursuant to the 1984 reservation that it made, theICJ has no jurisdiction over the controversy, since it involves a dispute with a Central American State. Nicaraguaargues that the ICJ has jurisdiction under the 1946 declaration, which was not terminated by the subsequent 1984declaration, since the US never gave the 6-months notice of termination, as required by the reservation that it hadmade in 1946.

According to Nicaragua, the US conceived, created, and organized a mercenary army, the contra force, in Nicaragua.The court found that contra force was not created by the US, but that a number of the operations were decided andplanned, if not actually by the US advisers, then at least in close collaboration with them, and on the basis of theintelligence and logistic support which the US was able to offer. The US gave assistance to the contra force in theform of logistic support, the supply of information on the location and movements of the Sandinista troops, the useof sophisticated methods of communication, etc. However, the evidence does not warrant a finding that the US gavedirect combat support.

ISSUE:

W/N the declaration is still binding on the US.

HELD:

The ICJ has jurisdiction. The 1946 declaration is still binding on the US.

The US cannot derogate from the time-limit proviso included in its 1946 declaration. The notion of reciprocity isconcerned with the scope and substance of the commitments entered into, including reservations, and not withformal conditions of their creation, duration, or extinction. Reciprocity cannot be invoked in order to excusedeparture from the terms of a States own declaration. Nicaragua can invoke the six months notice against the US,

not on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument thatcontains it. The 1984 notification cannot override the obligation of the US to submit to the jurisdiction of the Courtvis--vis Nicaragua.

ISSUE:

Whether the contras can be considered as organs of the US Government, or as acting on its behalf.

HELD: No, the contras are not agents of the US government.

The evidence is insufficient to demonstrate the total dependence of the contras on US aid. A partial dependencymay be inferred from the fact that the leaders were selected by the US, and from other factors such as theorganization, training and equipping of the force, planning of operations, the choosing of targets, and the operational

support provided. There is, however, no clear evidence that the US actually exercised such a degree of control as tojustify treating the contras as acting on its behalf. Therefore, the contras, remain responsible for their own acts, inparticular for alleged violations by them of humanitarian law.

For the US to be legally responsible, it would have to be proved that the State had effective control of the operationsin the course of which the alleged violations were committed.

4) CORFU CHANNEL (UKV ALBANIA) Fernandez


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Facts:

October 1944, the British Navy verified that no mines existed through the North Corfu Channel in the

territory of Albania. The channel was again checked (one in January and the other in February 1945) andhad negative results.

October 22, 1946 a squadron of British warships (the Mauritius, Leander, Saumarez, and Volage) left theport of Corfu and proceeded through the channel.

While in Alabanian territorial waters, two of the warships (Saumarez and Volage) struck floating mines and

sustained serious damage. 44 British officers and crew members died, while 42 were injured.

November 1946, British mine sweepers went through the North Corfu Channel, cut 22 moored mines and

took them to Malta for examination.

By a Special Agreement, the British government instituted proceedings against Albania in the International

Court of Justice (ICJ), demanding compensation for damage to its ships and for the loss of lives.

Albanias contention is that there was no proof that such mines that damaged the ships were their own. It

also asserted that coastal States have a right to regulate the passage of foreign ships through its territorialwaters, and that prior authorization to pass should be acquired. Since Britain did not obtain priorauthorization, its passage was not innocent. For this breach of international law, Albania demandscompensation from Britain.

Issue:Should Albania be held responsible for the mines that struck the British warships?

Held:Yes, Albania is responsible under international law for the damage and loss of lives, and that it owned a duty to paycompensation to Great Britain. Before and after the incident, the Albanian Governments attitude showed itsintention to keep a jealous watch on its territorial waters. And when the Albania came to know of the minefield, itprotested strongly against the minesweeping conducted by Britain but not to the laying of mines. It is but showingthat Albania desired the presence of such mines. Moreover, the layout of the minefield shows that this could only beaccomplished by stationing a look-out post near the coasts (that is in Albania). The inevitable conclusion is that thelaying of the minefield could not have been done without the knowledge of Albania. It is then its duty to notify andwarn ships proceeding through the Strait. Its failure to undertake such constitutes neglect of its international

responsibility.

As to the argument on passage through territorial waters, the ICJ ruled that the North Corfu Channel constituted afrontier between Albania and Greece, that a part of it is wholly within the territorial waters of these 2 States, and thatthe Strait is of special importance to Greece. Hence, the Channel belongs to a class of international highwaysthrough which passage cannot be prohibited by a coastal State in time of peace. Moreover, the passage of the Britishwarships through the Channel was carried out in such manner that is consistent with the principle of innocentpassagethe guns were in a normal position and not targeted to the shores.

5) TEMPLEOF PREAH VIHEAR(CAMBODIAV. THAILAND) Gana

Facts:- The case arose from an Application filed by the Government of Cambodia regarding territorial sovereignty

over the Temple of Preah Vihear.- Thailand made two preliminary objections. One was regarding the jurisdiction of the Permanent Court of

International Justice (PCIJ) while the other was regarding the territory itself.First Objection:

- Cambodia argues that the PCIJ has jurisdiction over both countries based on a declaration made by the Thaigovt. on May 20, 1950 categorically admitting the jurisdiction of the PCIJ.

- Thailand, on the other hand, argues that based on a 1959 decision of the PCIJ, declarations of acceptancemade after the PCIJ ceased to exist (on April 19, 1946) were not binding. This was because Art. 36 par. 5of the Statute of the Court says that acceptances made are only binding as such for the period which thePCIJ still has to run. And since Thailand became a party to said statute on Dec. 16, 1946, then such


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acceptance was not anymore binding.Issue:

- W/n the 1950 declaration of Thailand was an acceptance of the jurisdiction of the PCIJ.Held:

- The Court said yes. The Court held that the 1959 decision is only applicable to the parties thereto (whichwere Israel and Bulgaria). Furthermore, the Court held that Thailands 1950 declaration made its situationdifferent from that of Bulgaria. Thailands being a party to the statute expired on May 6, 1950. Thus, itsdeclaration on May 20, 1950 was a new declaration made outside the operation of the Statute of the Courtand consequently outside the application of Art. 36.

Second Objection:- Cambodia bases its claim on the Temple of Preah on a map (Annex 1) made by a group of people. On the

other hand, Thailand bases its claim on a treaty signed by France (who was then conducting the foreignrelations of Indo-China) and Siam.

- Thailand argues that Annex 1 was never accepted by the parties to the treaty. Also, Thailand reiterates thatthe treaty says that the boundary between Thailand and Cambodia is based on the watershed and theboundary delineated by Annex 1 does not conform to this agreement.

Issue:- W/c to follow, Annex 1 or the treaty?

Held:- The Court held that Annex 1 should be followed. Even if it was not accepted by France, there was an

implied acceptance of such map. This can be seen through the acts of France and Thailand. In 1934-1935a survey had established a divergence between the map line and the true line of the watershed, and othermaps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continuedalso to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in thecourse of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existingfrontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would havebeen natural for Thailand to raise the matter: she did not do so.

- In effect, Cambodia and Thailand are now estopped from questioning the validity of Annex 1. Thus, theTemple of Preah Vihear belongs to Cambodia.

-6) GABCKOVO-NAGYMAROS (HUNGARYVS. SLOVAKIA) (1993) Lopez

Facts:- The case started from a treaty entered into by Hungary and Czechoslovakia concerning the construction and

operation of the Gabckovo-Nagymaros System of Locks. The said project was for the construction ofinfrastructure on and around the Danube River, which ran in between both countries, for the moreproductive use of the waters of the said river.

- The treaty assigned the construction of that part of the project in Nagymaros to Hungary while that part inGabcikovo to Czechoslovakia. Both parties had their own responsibilities. Each country was responsiblefor certain parts of the project.

- Works on the project started in 1978. However, Hungary encountered intense criticism from its citizens soit decided to postpone works on the project starting May 13, 1989. Eventually, Hungary abandoned theproject on 27 October 1989.

- During the suspension, Czechoslovakia and Hungary entered into negotiations to come up with an

alternative to the abandoned project. One alternative is Variant C. On 23 July 1991, the SlovakGovernment decided to begin, in September 1991, construction to put the Gabckovo Project into operationusing Variant C.

- On 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note Verbaleterminating the 1977 Treaty with effect from 25 May 1992.

- Negotiations continued but to no avail. Until, the filing of the instant case.Issue:(a) Whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on theNagymaros Project and on the part of the Gabckovo Project for which the Treaty attributed responsibility to theRepublic of Hungary.
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(b) Whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the "provisionalsolution" and to put into operation from October 1992 this system, described in the Report of the Working Group ofIndependent Experts of the Commission of the European Communities, the Republic of Hungary and the Czech andSlovak Federal Republic dated 23 November 1992 (damming up of the Danube at river kilometer 1851.7 onCzechoslovak territory and resulting consequences on water and navigation course).

(c) What are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic ofHungary?Held:

(a) The Court says No. Hungary rests the validity of its action upon the principle of a state of necessity. Thestate says that they had to abandon the treaty because of economic and ecological concerns. The Courtenumerated the requirements for the application of such a principle, to wit:

a. it must have been occasioned by an "essential interest" of the State which is the author of the actconflicting with one of its international obligations

b. that interest must have been threatened by a "grave and imminent peril"c. the act being challenged must have been the "only means" of safeguarding that interest

d. that act must not have "seriously impair[ed] an essential interest" of the State towards which theobligation existed

e. the State which is the author of that act must not have "contributed to the occurrence of the state ofnecessity"

In this case, the Court held that there was an essential interest, which is the environment. But, the courtheld that the peril to be caused is not imminent. The future problems being pointed out by Hungary werenot impending enough to justify their abandonment of the treaty (ie, problem regarding drinking water wasa long-term problem). The Court also pointed out that there were other means by which Hungary couldhave avoided the alleged perils attached to the continuation of the Gabckovo-Nagymaros System of Locks(ie, lessening of the river bed could have been solved by constant refilling of the bed with gravel). TheCourt also pointed out that Hungary helped in bringing about the state of necessity by rushing the projectswithout fully understanding the effects it would have in the environment.

(b) The Court says no. Czechoslovakia rests its claim on what it calls the "principle of approximate

application" to justify the construction and operation of Variant C. The principle states that whenever alegal instrument of continuing validity cannot be applied literally owing to the conduct of one of theparties, it must, without allowing that party to take advantage of its own conduct, be applied in a wayapproximating most closely to its primary object. The Court took note that the basic characteristic of thetreaty is to provide for the construction of the Gabckovo-Nagymaros System of Locks as a jointinvestment constituting a single and indivisible operational system of works. Clearly, through Variant C,Czechoslovakia violated such main objective of the treaty. Through Variant C, the Czechs wanted to createtheir own system of works on the Gabcikovo side of the Danube. This is obviously an internationallywrong act for it violated the treaty agreed upon between the parties. The Court considers thatCzechoslovakia, by unilaterally assuming control of a shared resource, and thereby depriving Hungary ofits right to an equitable and reasonable share of the natural resources of the Danube with the continuingeffects of the diversion of these waters on the ecology of the riparian area of the Szigetkz failed torespect the proportionality which is required by international law.

(c) The 19 May 1992 declaration of Hungary did not have any legal effect. It did not terminate the treatybetween the two states. When Hungary made such a declaration, it did not have any basis to terminate thetreaty. It was actually the one which violated the treaty by abandoning their obligations. There was nofault committed by the Czechs to justify what Hungary did. In the Court's view, therefore, the notificationof termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia hadyet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as aground for terminating it when it did.

(d) The Court finds that Hungary and Slovakia must negotiate in good faith in the light of the prevailingsituation, and must take all necessary measures to ensure the achievement of the objectives of the Treaty.Unless the Parties otherwise agree, a joint operational rgime must be established in accordance with the


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Treaty. Also, unless the Parties otherwise agree, Hungary shall compensate Slovakia for the damagesustained by Czechoslovakia and by Slovakia on account of the suspension and abandonment by Hungaryof works for which it was responsible; and Slovakia shall compensate Hungary for the damage it hassustained on account of the putting into operation of the "provisional solution" by Czechoslovakia and itsmaintenance in service by Slovakia.

7) ADVISORY OPINIONONTHE LEGAL CONSEQUENCESOFTHE PALESTINIAN WALL Mendiola

Facts: (Facts are really short.) Israel constructed a wall in the Occupied Palestinian Territory including in and aroundeast Jerusalem. The question on which the advisory opinion of the Court has been requested is set forth inresolution ES-10/14 adopted by the General Assembly of the United Nations on 8 December 2003 at itsTenth Emergency Special Session.

Issue: W/N the court has jurisdiction to issue an advisory position.

Held: The Court has Jurisdiction.

The Court has already indicated that the subject of the present request for an advisory opinion falls

within the competence of the General Assembly under the Charter.

Even if Article 12, paragraph 1, of the Charter provides that: While the Security Council isexercising in respect of any dispute or situation the functions assigned to it in the present Charter, the

General Assembly shall not make any recommendation with regard to that dispute or situation unless the

Security Council so requests. a request for an advisory opinion is not in itself a recommendation by theGeneral Assembly with regard to [a] dispute or situation.As regards the practice of the United Nations, both the General Assembly and the Security Council initiallyinterpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on aquestion concerning the maintenance of international peace and security while the matter remained on theSecurity Councils agenda. However, this interpretation of Article 12 has evolved subsequently. Thus theGeneral Assembly deemed itself entitled in 1961 to adopt recommendations in the matter of the Congo(resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of the Portuguese colonies

(resolution 1913 (XVIII)) while those cases still appeared on the Councils agenda, without the Councilhaving adopted any recent resolution concerning them.

Issue: W/N the Court cannot exercise jurisdiction to issue an opinion because of contentious matters between Israeland Palestine.

Held: The Court can exercise its jurisdiction.

One of the arguments is to the effect that the Court should not exercise its jurisdiction in the present casebecause the request concerns a contentious matter between Israel and Palestine, in respect of which Israel hasnot consented to the exercise of that jurisdiction. According to this view, the subject-matter of the question

posed by the General Assembly is an integral part of the wider Israeli-Palestinian dispute concerning questionsof terrorism, security, borders, settlements, Jerusalem and other related matters. Israel has emphasized that ithas never consented to the settlement of this wider dispute by the Court or by any other means of compulsoryadjudication; on the contrary, it contends that the parties repeatedly agreed that these issues are to be settled bynegotiation, with the possibility of an agreement that recourse could be had to arbitration.

The Court observes that the lack of consent to the Courts contentious jurisdiction by interestedStates has no bearing on the Courts jurisdiction to give an advisory opinion. In an Advisory Opinion of1950, the Court explained that:


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The consent of States, parties to a dispute, is the basis of the Courts jurisdiction incontentious cases. The situation is different in regard to advisory proceedings. The Courts reply isonly of an advisory character: as such, it has no binding force. It follows that no State, whether aMember of the United Nations or not, can prevent the giving of an Advisory Opinion which theUnited Nations considers to be desirable in order to obtain enlightenment as to the course of actionit should take.

Issue: W/N building of the wall violates the right of the Palestinian people to self-determination.

Held: The building of the wall violates the self-determination doctrine.

As regards the principle of the right of peoples to self-determination, the Court observes that theexistence of a Palestinian people is no longer in issue. Such existence has moreover been recognized byIsrael in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat, President of the PalestineLiberation Organization (PLO) and Mr. Yitzhak Rabin, Israeli Prime Minister. In that correspondence, thePresident of the PLO recognized the right of the State of Israel to exist in peace and security and madevarious other commitments. In reply, the Israeli Prime Minister informed him that, in the light of thosecommitments, the Government of Israel has decided to recognize the PLO as the representative of the

Palestinian people.

8) ADVISORY OPINIONONTHE USEOF NUCLEARWEAPONS Morada

Facts:-The World Health Organization(WHO), sent to the Registrar of the International Court of Justice(ICJ) a decision ofthe World Health Assembly (WHA) to submit a question to the Court for an advisory opinion.-The request for advisory opinion states, in summary, that:

-In view of the report of the Director-General and the resolutions of the WHA on the health andenvironmental effects of nuclear weapons; and-Recalling that primary prevention is the only appropriate means to deal with the health andenvironmental effects of the use of nuclear weapons;-The WHA decides to request the International Court of Justice to give an advisory opinion on the

following question:In view of the health and environmental effects, would the use of nuclear weapons by a State in

war or other armed conflict be a breach of its obligation under international law includingthe WHO Constitution?-While the ICJ has the power to give advisory opinions, three conditions must be satisfied in order to found thejurisdiction of the Court when a request for an advisory opinion is submitted to it by a specialized agency:

1. the agency requesting the opinion must be duly authorized, under the Charter, to request opinions fromthe Court;

2. The opinion requested must be on a legal question;3. This question must be one arising within the scope of the activities of the requesting agency.

Issue: W/N the Court has the jurisdiction to give the advisory opinion requested by WHO.

Held: NO, because the third requisite was not met-There is no question of compliance with regard to the first two requisites since, as regards the first one, WHOsConstitution and the Agreement between WHOs agreement with the United Nations states that the GeneralAssembly of the United Nations authorizes the WHO to request advisory opinions of the ICJ on legal questionsarising within the scope of its competence.-As to the second requisite, the issue posed is indeed a legal question, since its resolution would require the ICJ tointerpret the rules of law invoked regarding the obligations of the States, and assess whether the behaviour inquestion conforms to those obligations. The political nature of the motives which may have inspired the request andthe political implications that the opinion given might have are irrelevant in the establishment of jurisdiction.-With regard to the third requisite, the Rules and the Constitution of the organization must be referred to in order to


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determine its field of activity or area of competence.-The ICJ finds that the activities of WHO relate only to the effects of the use of nuclear weapons on health, but notto the legality of the use of such weapons in view of their health and environmental effects.-None of the function of WHO has a sufficient connection with the question of legality of the use of nuclearweapons. Whether nuclear weapons are used legally or illegally, their effects on health would be the same.-It must be noted that WHO is a specialized agency under the UN . Being a specialized agency, it is empoweredonly to take such action for the accomplishment of its specific objectives, which necessarily deal with public health.It cannot encroach on the responsibilities of other parts of the United Nations System.-There is no doubt that questions concerning the use of force, the regulation or armaments and disarmament arewithin the competence of the United Nations and lie outside that of the specialized agencies.-The request for an advisory opinion submitted by the WHO does not related to a question which arises within thescope of the activities of WHO.

Side issues:Issue: W/N the resolution of WHA requesting for an advisory opinion, having been adopted by the requisite

majority, must be presumed to have been validly adopted.Held: The mere fact that a majority of States, in voting a resolution, have complied with the rules of form, cannotsuffice to remedy the fundamental defect of such resolution, it being ultra vires.

Issue: W/N the opinion of the General Assembly of UN welcoming the resolution of WHO to request an advisoryopinion grants WHO the competence to do so.

Held: NO. The General Assembly only meant to lend its political support to the action taken by WHO, not topass upon WHOs competence to request an opinion on the question raised

9) NOTTEBOHM (LIECHTENSTEINVS. GUATEMALA) Rivas

FACTS:- Nottebohm was born at Hamburg and was a German national.- In October 9, 1939, a little more than a month after the opening of the Second World War, marked by

Germany's attack on Poland, that he applied for naturalization in Liechtenstein but he continued to have hisfixed abode in Guatemala where he resumed his usual business activities.

- The necessary conditions for the naturalization of foreigners in Liechtenstein are laid down by the

Liechtenstein Law of 4th January, 1934.o that the applicant for naturalization must prove that acceptance into the Home Corporation

(Heimat verband) of a Liechtenstein commune has been promised to him in case of acquisition ofthe nationality of the State;

o that, subject to waiver of this requirement under stated conditions, he must prove that he will lose

his former nationality as the result of naturalization;

o that he has been resident in the Principality for at least three years, although this requirement can

be dispensed with in circumstances deserving special consideration and by way of exception;o that he has concluded an agreement concerning liability to taxation with the competent authorities

and has paid a naturalization fee.- The Law reveals concern that naturalization should only be granted with full knowledge of all the pertinent

facts and adds that the grant of nationality is barred where circumstances are such as to cause apprehensionthat prejudice may enure to the State of Liechtenstein.

- A Document dated 15th October, 1939 certifies that on that date the citizenship of Mauren had beenconferred upon him.

- On 20th October Nottebohm took the oath of allegiance and on 23rd October an arrangement concerningliability to taxation was concluded. A Certificate of Nationality was also produced to the effect thatNottebohm had been naturalized by a Supreme Resolution of the Prince of 13th October, 1939.

- Nottebohm then obtained a Liechtenstein passport and had it visa-ed by the Consul General of Guatemalain Zurich on 1st December, 1939, and returned to Guatemala at the beginning of 1940, where he resumedhis former business activities.

- Liechtenstein had filed an Application instituting proceedings against Guatemala, claiming:


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o damages in respect of various measures which Guatemala had taken against the person and

property of M. Nottebohm, in alleged contravention of international law.o that the Government of Guatemala had acted towards Mr. Friedrich Nottebohm, a citizen of

Liechtenstein, in a manner contrary to international law.

- Guatemala contended that the Court was without jurisdiction, the principal ground for its objection beingthat the validity of its declaration of acceptance of the compulsory jurisdiction of the Court expired a fewweeks after the filing of the Application by Liechtenstein

ISSUE:- W/N the unilateral act by Liechtenstein in making M. Nottebohm its citizen was one which could be relied

upon against Guatemala in regard to the exercise of protection.

HELD:- NO! Nottebohm is still considered a citizen of Guatemala.- When two States have conferred their nationality upon the same individual and this situation is no longer

confined within the limits of the domestic jurisdiction of one of these States but extends to the internationalfield, international arbitrators or the Courts of third States which are called upon to deal with this situationwould allow the contradiction to subsist if they confined themselves to the view that nationality is

exclusively within the domestic jurisdiction of the State.- In order to resolve the conflict they have, on the contrary, sought to ascertain whether nationality has been

conferred in circumstances such as to give rise to an obligation on the part of the respondent State torecognize the effect of that nationality.

- In determining his nationality, different factors are taken into consideration, and their importance will varyfrom one case to the next:

o habitual residence of the individual concerned

o the centre of his interests, his family ties, his participation in public life,

o attachment shown by him for a given country and inculcated in his children, etc.

- According to the practice of States, nationality constitutes the juridical expression of the fact that anindividual is more closely connected with the population of a particular State.

- At the time of his naturalization, does Nottebohm appear to have been more closely attached by histradition, his establishment, his interests, his activities, his family ties, his intentions for the near future, to

Liechtenstein than to any other State?- Nottebohm always retained his family and business connections with Germany and that there is nothing to

indicate that his application for naturalization in Liechtenstein was motivated by any desire to dissociatehimself from the Government of his country.

- Also, Nottebohm had been settled for 34 years in Guatemala, which was the centre of his interests and hisbusiness activities. He stayed there until his removal as a result of war measures in 1943 (remember that hebecame a citizen of Liechtenstein in 1979), and complains of Guatemala's refusal to readmit him. Membersof Nottebohm's family had, moreover, asserted his desire to spend his old age in Guatemala.

- There is thus the absence of any bond of attachment with Liechtenstein, but there is a long-standing andclose connection between him and Guatemala, a link which his naturalization in no way weakened.

10) OPOSAVS. FACTORAN Sarenas

Facts: The petitioners in this case are all minors represented by their parents. Factoran was the then secretary of

the DENR.

The complaint was instituted as a taxpayers class suit. The minors are saying that they represent their

generation as well as generation yet unborn.

The prayer is that the secretary of DENR to cancel all existing timber license agreements and refuse to

accept new ones.

Factoran filed a motion to dismiss saying that petitioners do not have a cause of action and what is involved

is a political question that is for the legislative department to resolve. The RTC judge approved the motion.


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Plaintiffs thus filed the motion for certiorari.

Issue:

W/N petitioners have a cause of action

Held:

Petitioners indeed have locus standi to file the case. They can file the case for themselves as well as for the

succeeding generations.

Issue:

W/N the petitioners failed to assert a legal right

Held:

Petitioners have successfully showed that they have a specific legal right. The right to a balanced and

healthful ecology (Sec 16, Art II of the 1987 Constitution)

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing

the environment. It is the DENRs duty to protect such right.

A denial or violation of that right by the other who has the correlative duty to respect or protect the samegives right to a cause of action.

Issue:

W/N the case involves a political question

Held:

No. What is principally involved is the enforcement of a right vis--vis policies already formulated and

expressed in legislation.

Issue:

W/N the case should be dismissed due to non-impairment of contracts (referring to the timber licenses)

Held: The non-impairment clause must yield to the police power of the state. All licenses may be revoked or

rescinded by executive action.

Decision: Order of dismissal set aside (I guess remanded yung case)

11) EAST TIMOR Anastacio

1. The main ruling of the Court (the majority opinion) is that it cannot exercise jurisdiction over the casenotwithstanding the fact that it has been conferred jurisdiction through the declarations made by the parties (i.e.,Portugal and Australia) under Article 36, paragraph 2, of its Statute.

Reasons for the ruling:

a) the Court cannot exercise jurisdiction over the case because Indonesia is not a party thereto. The court heldthat in order to rule on the proceedings instituted by Portugal against Australia concerning "certainactivities of Australia with respect to East Timor", it would be necessary for the court to determine therights and obligations of Indonesia. Specifically, the court held that the very subject-matter of its decisionwould necessarily be a determination whether, having regard to the circumstances in which Indonesiaentered and remained in East Timor, it could or could not have acquired the power to enter into treaties on


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behalf of East Timor relating to the resources of its continental shelf. The Court could not make such adetermination in the absence of the consent of Indonesia;

b) regarding the contention that Portugal and Australia have accepted the compulsory jurisdiction of the Courtunder Article 36, paragraph 2, of its Statute, the court noted that Indonesia did not do so. This, in effect,precludes the court from exercising jurisdiction since were it to rule on the case, its decision would affect,but would not be binding on, Indonesia because of its lack of consent to the courts jurisdiction;

c) while it is true that the right of peoples to self-determination, as it evolved from the Charter and fromUnited Nations practice, has an erga omnes character, the Court nonetheless considers that the erga omnescharacter of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature ofthe obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when itsjudgment would imply an evaluation of the lawfulness of the conduct of another State which is not a partyto the case;

d) if the court were to exercise jurisdiction over the case and render judgment thereon notwithstanding thelack of Indonesias consent, such a judgment would run directly counter to the "well-established principleof international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdictionover a State with its consent" (Monetary Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 32).

Re the separate opinion of Judge Oda:

Judge Oda, while agreeing that Portugal's Application should be dismissed as the Court lacks jurisdiction toentertain it, considers that its dismissal should not have been based upon the absence of Indonesia's consent, as inthe Court's Judgment, but upon thesole consideration that Portugal lacked locus standi. His reasoning appears to bebased on his view that the central issue in the case is whether Portugal or Indonesia, as a State lying opposite toAustralia, was entitled to the continental shelf in the "Timor Gap"(maybe, this is what is referred to in the Treaty of11 December 1989 between Australia and Indonesia as an area between the Indonesian Province of East Timor andNorthern Australia).

. He notes that on the matter of the delimitation of the continental shelf in the relevant areas, it appears thatsince the seventies, Indonesia claimed the status of a coastal State for East Timor and, as such, negotiated withAustralia while, on the other hand, Portugal did not. Had Portugal also claimed that status, it could and should have

initiated a dispute over the corresponding title to the continental shelfwith Indonesia, but not with Australia. Notunless and untilsuch time as Portugal had been established as having the status of the coastal State entitled to thecorresponding continental shelf could any issue concerning the seabed area of the "Timor Gap" have been thesubject matter of a dispute between Portugal and Australia Since Portugal does not have such status as yet, it has nolocus standi and hence, its complaint should be dismissed on such ground.

Re the dissenting opinion of Judge Weeramantry:

Judge Weeramantry disagrees with the majority view on the question as to whether or not the Court lacksjurisdiction on the ground that a decision against Australia would involve a decision concerning the rights ofIndonesia, a third State, not before the Court.

Judge Weeramantry, after analyzing the Monetary Gold decision and the prior and subsequentjurisprudence on the matter, concludes that, having regard to the facts of this case, theMonetary Golddecision isnot relevant inasmuch as the Court could determine the matter before it entirely on the basis of the obligations andactions of Australia alone, without any need to make an adjudication on the conduct of Indonesia. He bases this onthe view that a central principle of State responsibility in international law is the individual responsibility of a Statefor its actions, quite apart from the complicity of another State in those actions. Accordingly, he believes thatAustralias actions, in negotiating, concluding and initiating performance of the Timor Gap Treaty, and takinginternal legislative measures for its application, are thus justiciable on the basis of its unilateral conduct.

Re the dissenting opinion of Judge Skubiszewski:


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In his view, the court has jurisdiction because even it finds itself without jurisdiction to adjudicate on anyissue relating to the Timor Gap Treaty, it can still rule on Portugals first submission, i.e., with the status of EastTimor, the applicability to that territory of the principle of self-determination and some other basic principles ofinternational law, and the position of Portugal as administering Power. This is so because the first submission can beseparated from the other submissions which concern exclusively the specific issues of the treaty.

Judge Skubiszewski believes that the Court can decide on the lawfulness of some unilateral acts ofAustralia leading to the conclusion of the Treaty. A decision thereon does not imply any adjudication on Indonesia,nor does it involve any finding on the validity of the Treaty. The conduct of Australia can be assessed in the light ofUnited Nations law and resolutions. Such assessment is not linked to any passing upon Indonesia's activities.

Further, it is his view that Portugal has the capacity to act before the Court in this case on behalf of EastTimor and to vindicate the respect for its position as administering Power. The position of Portugal as administeringPower was questioned by Australia; the Court should have clarified this issue. It is within its jurisdiction.

12) ISLANDOF PALMAS Beron

Facts:The Island of Palmas sits about halfway between the islands of Mindanao in the Phil and Nanusa of the NetherlandsIndies. It is, however, within the boundaries of the Phil as defined by Spain and thus ceded to the United States(US) in 1898 by virtue of the Treaty of Paris. In 1906, American General Wood visited Palmas and discovered thatthe Netherlands also claimed sovereignty over the island.

Issue:Whether the island of Palmas in its entirety forms a part of territory belonging to the US or if Netherlands territory.

Held:It is within the Netherlands territory.

Contention of US:It bases its title on discovery and by virtue of which it acquired sovereignty over the islands. It claims that this titleis further confirmed by the Treaty of Monster to which Spain and the Netherlands are themselves contracting parties.US claims that it is unnecessary to establish facts showing the actual display of sovereignty over the Island ofPalmas, that is mere discovery is sufficient to acquire sovereignty over a territory. US also based its claim on theprinciple of contiguity (ibig sabhin, kung kanino bansa mas malapit, kanya yung island...)

Huber, the selected arbitrator disagreed with this contention of the US. Sovereignty over a territory is the right toexercise therein, to the exclusion of any other State, the functions of a State. Continuous and peaceful display ofterritorial sovereignty is as good as a title.

It is recognized that the US communicated the Treaty of Paris to the Netherlands, and that no reservations or protestswere made by the Netherlands in respect of the delimitation of the Philippines which included the Palmas. Howeverthe territorial sovereignty (which as stated above serves as good title...) which Netherlands exercised over thePalmas could not be affected by the mere silence as regards a treaty which has been notified.

Discovery alone without subsequent act cannot at the present time suffice to prove sovereignty over the Palmas.Even considering that the US possesses an imperfect title over the Palmas by virtue of the Treaty of Paris, this titlecannot prevail over the continuous display of authority of another state.

The principle of contiguity as contention should also fail. This principle itself is by its very nature so uncertain andcontested that even governments of the same state have on different occasions maintained contradictory opinions. Ifthis principle alone is to be used as basis for acquiring sovereignty over a territory, this principle would be in conflictwith what has been said about territorial sovereignty


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13) VFA CASE (LIMVS. EXEC. SEC.) Calinisan

Facts:

Beginning January 2002, personnel from the armed forces of the United States of America started arriving

in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1."

These so-called "Balikatan" exercises are the largest combined training operations involving Filipino and

American troops. In theory, they are a simulation of joint military maneuvers pursuant to the MutualDefense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951.

February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and

prohibition, attacking the constitutionality of the joint exercise

The lack of consensus(agreement) was eventually cured when the two nations concluded the Visiting

Forces Agreement (VFA) in 1999.Issue:

W/N "Balikatan 02-1" is covered by the Visiting Forces Agreement.

W/N American troops may actually engage in combat in Philippine territory

Held: Yes.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word

.'activities" arose from accident. In our view, it was deliberately made that way to give both parties a certainleeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposesother than military. As conceived, the joint exercises may include training on new techniques of patrol andsurveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels indistress, disaster relief operations, civic action projects such as the building of school houses, medical andhumanitarian missions, and the like.

The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise

participants may notengage in combat "except in self-defense."We wryly note that this sentiment isadmirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf,

cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot beexpected to pick and choose their targets for they will not have the luxury of doing so. We state this point ifonly to signify our awareness that the parties straddle a fine line, observing the honored legal maxim"Nemo potest facere per alium quod non potest facere per directum."11The indirect violation is actuallypetitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the UnitedStates government, and that the provision on self-defense serves only as camouflage to conceal the truenature of the exercise. A clear pronouncement on this matter thereby becomes crucial.

Notes:

The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism

campaign declared by President George W. Bush in reaction to the tragic events that occurred on September11, 2001

Mutual Defense Treatyas the "core" of the defense relationship between the Philippines and its

traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of ourarmed forces through joint training with its American counterparts; in re: VFA.

Visiting Forces Agreementprovides the "regulatory mechanism" by which "United States military andcivilian personnel [may visit] temporarily in the Philippines in connection with activities approved by thePhilippine Government." It contains provisions relative to entry and departure of American personnel,driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement ofvessels and aircraft, as well as the duration of the agreement and its termination. Its primary goal is tofacilitate the promotion of optimal cooperation between American and Philippine military forces in theevent of an attack by a common foe.


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14) WTO CASE (TAADAVS. ANGARA) Fernandez

Facts:

The Republic of the Philippines, through DTI Secretary Navarro signed in the Final Act Embodying the

Results of the Uruguay Round of Multilateral Negotiations.

The Philippine Senate, then, received a letter from the President of the Philippines stating that the Uruguay

Round Final Act (the Agreement establishing the World Trade Organization) is submitted to them for theirconcurrence. Another letter on the same subject was given to the Senate.

Senate adopted a resolution expressing its concurrence in the ratification of the international agreement.

Thereafter, the President signed the Instrument of Ratification. However, the WTO Agreement ratified bythe President did not contain certain documents contained in the Final Act signed by the DTI Secretary.

This action was filed by Tanada et al questioning the validity/constitutionality of the WTO Agreement.

Issues:Is the WTO Agreement consistent with the Constitution?Does the WTO Agreement unduly limit and restrict Philippine sovereignty?

Does the concurrence made by the Senate and the President, in essence, defective since it did not include otherdocuments contained in the Final Act signed by the DTI Secretary?

Held:An initial question was posed regarding jurisdiction. The SC ruled that it has jurisdiction over the matter since it hasthe power to determine whether there was GADLEJ on the part of the Senate and President. However, the SC willnot review the wisdom of their decisions.

The WTO Agreement is not violative of the Constitution. The reliance on the priniciple of economic nationalismespoused in Articles 2(sec 19) and 12(secs 10 and 12) of the Constitution is misplaced as these are not self-executingprovisions. They do not embody judicially enforceable constitutional rights but are guidelines for legislation. Theseare broad constitutional principles that need legislative enactments to implement them. Moreover, while theConstitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, itrecognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity andlimits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. TheConstitution did not intend to promote an isolationist policy. In addition, the GATT itself has provided built-inprotection from such unfair foreign competition and trade practices.

(the important part)Participating in the WTO Agreement did limit or restrict, to some extent, the absoluteness of our sovereignty, but isnot necessarily reprehensible. While sovereignty has traditionally been deemed absolute and all-encompassing onthe domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,expressly or impliedly, as a member of the family of nations. Through the incorporation clause in the Constitution,the Philippines is bound by generally accepted principles of law as they automatically form part of the laws of theland. Of great importance is the principle of pacta sunt servanda, which means that international agreements must beperformed in good faith. A state which has contracted valid international obligations is bound to make in itslegislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. So by

their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits grantedby or derived from a convention or pact. For instance, when the Philippines joined the UN and other bilateralrelations with other States, it effectively limits its sovereign powers of taxation, eminent domain and police power. Itcan then be inferred that a portion of sovereignty may be waived without violating the Constitution by virtue of thePhilippines being bound by generally accepted principles of law.

A Final Act is not the treaty itself. It is just a summary of the proceedings that took place during the negotiationstage. In fact, the Senate did what the Final Act requiredthe concurrence tot the WTO Agreement. By theratification of the Agreement, the other documents in question (Ministerial Declarations etc) were deemed adopted.


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Plus, the WTO Agreement itself stipulated what multilateral agreements are deemed included.

In sum, there was no GADLEJ on the part of the Senate and the President. When the WTO Agreement was ratifiedand made part of the law of the land, the Senate and the President was exercising, legitimately, its sovereign dutyand power. Notwithstanding objections against possible limitations on national sovereignty, the WTO remains as theonly viable structure for multilateral trading and development of international trade law.

15) CASE CONCERNING MARITIME DELIMITATION IN THE AREA BETWEEN GREENLAND ANDJAN MAYEN (DENMARK VS. NORWAY) GanaFacts:

- The case is a dispute between Denmark and Norway regarding the territorial jurisdiction over the part of

the Atlantic Ocean between Greenland (part of the Kingdom of Denmark) and the island of Jan Mayen (part

of the Kingdom of Norway). The distance between the coast of Greenland and Jan Mayen is 250 nautical

miles. The problem arose when Denmark, through an Executive Order, declared the area 200 miles from

the coast of Greenland as fishery zones of Denmark. Also, Norway enacted legislation empowering their

government to establish 200-mile economic zones around its coast. Thus, there was an overlap between the

fishery zone of Denmark (off the coast of Greenland) and the economic zone of Norway (off the coast ofJan Mayen).

- Norway argues that both parties already came up with an agreement over the overlapping zones on Dec. 8,

1965. The said agreement limited the claims of both countries up to a median line which was at the center

of Greenland and Jan Mayen. Norway also bases its claim on the 1958 Geneva Convention on the

Continental Shelf, which also solves the problem of overlapping claims by instituting a median line which

is equidistant from the coasts of either state. Norway also points out that by the conduct of Denmark, it can

be inferred that the latter accedes to the idea of a median line. Norway pointed to a Royal Decree, a Danish

Act and diplomatic notes and letters as proofs of such.Issue:

- How to divide the area between Greenland and Jan Mayen?Held:

- The Court held that Art. 6 of the 1958 Geneva Convention on the Continental Shelf should be followed.The said article states that in cases where two or more states have disputes of the same sort as the one in

this case, there should be a median line formed equidistant from the coasts of the states involved. This

medial line, though, can be adjusted as stated in the Article and affirmed by several decisions of the

International Court. The adjustment would be based on special circumstances, at the discretion of the

Court.

- In this case, the Court found that the respective coastal lengths of Greenland and Jan Mayen can be

considered as a special circumstance which calls for the adjustment of the median line. This is considered a

special circumstance because the difference is substantial. Greenland possesses a much longer coastline,

thus it should be afforded a wider claim over the disputed area based on the principle of proportionality.

16) CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES

IN AND AGAINST NICARAGUA (NICARAGUA VS. US) Lopez

Facts:

- Nicaragua is assailing certain acts of the US as being contrary to customary international law, to wit:

o Placing of mines in the ports of Nicaragua;

o Supporting a military group called the contra forces which has committed violations of human

rights of some Nicaraguans; and

o Attacking certain places in Nicaragua;

- The US argues that it was merely doing so in self-defense. It pointed out that such use of force in self-
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defense is allowed by international law. The US was saying that Nicaragua was attacking El Salvador,

Costa Rica and Honduras and that the US was merely acting to defend the said countries.Issue:

- W/n the acts of the US are contrary to customary international law.

Held:- The Court said that the acts were contrary to customary international law.

o First, the attacks on Nicaragua were against the principle of the non-use of force in international

relations. Obviously, by attacking Nicaragua and placing mines in its ports, the US employed

force against Nicaragua. The US argues that all these acts were in self-defense. The Court does

not agree with the US. It held that there was no actual armed attack on the countries allegedly

being protected by the US to warrant the attack on Nicaragua. What Nicaragua was guilty of was

the sending of arms to the opposition in El Salvador, Costa Rica and Honduras. The court held

that based on customary international law, these acts are not considered as armed attacks to justify

the attacks made by the US as being in self-defense.

o The court found that the acts of the US also violated the principle of non-interference which

respects the sovereignty of a state over its territory. By supporting the contra forces in Nicaragua,

the US was impliedly coercing the government of Nicaragua to do acts in the manner preferable tothe US. In short, the US was implicitly interfering in the governance of Nicaragua through the use

of force.

o The Court also finds that the placing of mines by the US in the ports of Nicaragua was a violation

of the freedom of navigation and commerce guaranteed by Article XIX of the Treaty of

Friendship, Commerce and Navigation of 1956. The Court therefore finds that the United States is

prima facie in breach of an obligation not to deprive the 1956 Treaty of its object and purpose

(pacta sunt servanda), and has committed acts in contradiction with the terms of the Treaty.

o In the end, the Court held that the US is under an obligation to make reparation to the Republic of

Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary

international law enumerated above and by the breaches of the Treaty of Friendship, Commerce

and Navigation.

NICARAGUAVS. US - Calinisan c/o SC notes Tanquilit

FACTS:

In 1946, the US made a declaration containing the following reservation: this declaration shall remain in force for aperiod of 5 years and thereafter until the expiration of 6 months after notice may be given to terminate thisdeclaration.

In 1984, the US deposited with the UN Sec Gen a notification referring to the 1946 declaration, stating: theaforesaid declaration shall not apply to disputes with any Central American State or arising out of or related toevents in Central America, any of which disputes shall be settled in such manner as the parties to them may agree.

Nicaragua filed a claim against the US for damages in connection with military and paramilitary activities allegedlysupported by the US in and against Nicaragua. The US argues that pursuant to the 1984 reservation that it made, theICJ has no jurisdiction over the controversy, since it involves a dispute with a Central American State. Nicaraguaargues that the ICJ has jurisdiction under the 1946 declaration, which was not terminated by the subsequent 1984declaration, since the US never gave the 6-months notice of termination, as required by the reservation that it hadmade in 1946.

According to Nicaragua, the US conceived, created, and organized a mercenary army, the contra force, in Nicaragua.The court found that contra force was not created by the US, but that a number of the operations were decided and


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planned, if not actually by the US advisers, then at least in close collaboration with them, and on the basis of theintelligence and logistic support which the US was able to offer. The US gave assistance to the contra force in theform of logistic support, the supply of information on the location and movements of the Sandinista troops, the useof sophisticated methods of communication, etc. However, the evidence does not warrant a finding that the US gavedirect combat support.

ISSUE:

W/N the declaration is still binding on the US.

HELD:

The ICJ has jurisdiction. The 1946 declaration is still binding on the US.

The US cannot derogate from the time-limit proviso included in its 1946 declaration. The notion of reciprocity isconcerned with the scope and substance of the commitments entered into, including reservations, and not withformal conditions of their creation, duration, or extinction. Reciprocity cannot be invoked in order to excusedeparture from the terms of a States own declaration. Nicaragua can invoke the six months notice against the US,

not on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument thatcontains it. The 1984 notification cannot override the obligation of the US to submit to the jurisdiction of the Courtvis--vis Nicaragua.

ISSUE:

Whether the contras can be considered as organs of the US Government, or as acting on its behalf.

HELD: No, the contras are not agents of the US government.

The evidence is insufficient to demonstrate the total dependence of the contras on US aid. A partial dependencymay be inferred from the fact that the leaders were selected by the US, and from other factors such as theorganization, training and equipping of the force, planning of operations, the choosing of targets, and the operational

support provided. There is, however, no clear evidence that the US actually exercised such a degree of control as tojustify treating the contras as acting on its behalf. Therefore, the contras, remain responsible for their own acts, inparticular for alleged violations by them of humanitarian law.

For the US to be legally responsible, it would have to be proved that the State had effective control of the operationsin the course of which the alleged violations were committed.

17) Treaty of Antarctica Mendiola

18) Principality of Sealand MoradaFacts:The Principality of Sealand, located on an abandoned World War II anti-aircraft platform seven miles (11km) off the English coast, claims that it is a legitimate independent country but that's quite doubtful.

In 1967, retired British Army major Paddy Roy Bates occupied the abandoned Rough's Tower in theNorth Sea. He and his wife discussed independence with British attorneys and subsequently declaredindependence for the Principality of Sealand on September 2, 1976. Bates called himself Prince Roy andnamed his wife Princess Joan. They began issuing coins, passports, and stamps for their new country.In support of Sealand's sovereignty, Prince Roy fired warning shots at a buoy repair boat that came closeto Sealand. The Prince was charged with unlawful possession and discharge of a firearm by the Britishgovernment. The Essex court proclaimed that they didn't have jurisdiction over the tower and the Britishgovernment chose to drop the case due to mockery by the media. That case represents Sealand's first


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claim to de facto international recognition as an independent country. (The United Kingdom demolishedthe only other nearby tower lest others get the idea to also strive for independence.) The second de factorecognition was when the Dutch government sent a diplomat to Sealand to petition the release of itsnationals who were detained by Prince Roy as prisoners of war.

Today, only Prince Roy lives on the tower at sixty feet above the sea. Princess Joan's arthritis isn'tconducive to living on the North Sea and though the royal family's son, Michael takes care of much of thebusiness for Sealand, he also lives onshore. The Bateses all maintain "dual" citizenship in the UnitedKingdom and Sealand.In 2000, Sealand came into the news because a company called Haven Co Ltd planned on operating acomplex of Internet servers at Sealand, out of the reach of governmental control. HavenCo gave theBateses $250,000 and stock to lease Rough's Tower and the company has the option to purchase Sealandin the future. This transaction was especially satisfying to the Bateses as the maintenance and support ofSealand has been quite expensive over the past 33 years.Issue: W/N Sealand is an independent StateHeld: NO.There areeight accepted criteria used to determine whether an entity is an independent country or not.

1) Has space or territory which has internationally recognized boundaries. No. Sealand has no land orboundaries at all, it's a tower built by the British as an anti-aircraft platform during World War II.Certainly, the government of the U.K. can assert that it owns this platform.Sealand also lies within the United Kingdom's proclaimed 12 nautical mile territorial water limit. Sealandclaims that since it asserted its sovereignty before the U.K. extended its territorial waters, it concept ofbeing "grandfathered in" applies. Sealand also claims its own 12.5 nautical mile territorial water.2) Has people who live there on an ongoing basis. Not really. As of 2000, only one person lives at Sealandand he's going to move out, to be replaced by temporary residents working for Haven Co. Prince Roymaintains his U.K. citizenship and passport, lest he end up somewhere where Sealand's passport isn'trecognized.3) Has economic activity and an organized economy. A State regulates foreign and domestic trade andissues money. No. Haven Co represents Sealand's only economic activity up to now. While Sealand

issued money, there's no use for it beyond collectors. Likewise, Sealand's stamps only have value to aphilatelist (stamp collector) as Sealand is not a member of the Universal Postal Union, mail from Sealandcan't be sent elsewhere (nor is there much sense in mailing a letter across the tower itself).4) Has the power of social engineering, such as education. Perhaps. If it had any citizens.5) Has a transportation system for moving goods and people. No.6) Has a government which provides public services and police power. Yes, but that police power iscertainly not absolute. The United Kingdom can assert its authority over Sealand quite easily with a fewpolice officers.7) Has sovereignty. No other State should have power over the State's territory. No. The United Kingdomhas power over Sealand's territory. The British government was quoted in Wired, "Although Mr. Batesstyles the platform as the Principality of Sealand, the U.K. government does not regard Sealand as astate."

8) Has external recognition. A State has been "voted into the club" by other States. No. No other countryrecognizes Sealand. An official from the United States Department of State was quoted in Wired, "Thereare no independent principalities in the North Sea. As far as we are concerned, they are just Crowndependencies of Britain."The British Home Office was quoted by the BBC that the United Kingdom does not recognize Sealandand, "We've no reason to believe that anyone else recognizes it either."
http://geography.about.com/cs/politicalgeog/a/statenation.htmhttp://geography.about.com/cs/politicalgeog/a/statenation.htmhttp://geography.about.com/cs/politicalgeog/a/statenation.htm


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19) Western Sahara Case Rivas

FACTS:Western Sahara is inhabited by organized but nomadic tribes.

Spain, Mauritania and Algeria asserts sovereign rights over it

ISSUE:W/N Western Sahara is terra nullius (territory which prior to occupation belonged to no state or which hasbeen abandoned by a prior occupant)

HELD:It is not terra nulliusTerritories inhabited by tribes or people having a social and political organization were not regarded asterra nulliusThe court concludes that the material and information presented to it do not establish any tie of territorialsovereignty over the Western Sahara.

Discovery of terra nullius is not enough to establish sovereignty. It must be accompanied by effectivecontrol

20) Holy See vs. Del Rosario Sarenas

Facts:The Holy See exercises sovereignty over the Vatican City in Rome and is represented in the Philippinesby the Papal NuncioRosario is the judge of RTC of Makati. Private respondent is Starbright Sales Enterprises Inc, engaged inthe real estate business.Msgr. Cirilos in behalf of the Holy See and Philippine Realty Corporation (PRC) sold to Ramon Licup 3parcels of land in Paranaque.

The agreement was made on the condition that Licup give P100k as earnest money and that the sellerswill clear the lots of squatters.Licup paid the earnest money and later on transferred his rights to Starbright. Starbright demanded fromthe sellers that they clear the lots of squatters.Msgr. Cirilos informed Starbright that this cannot be done because the squatters refuse to leave. He thengave the option that either Starbright clear the lots themselvesor that the earnest money be returned tothem.Starbright then proposed that if they themselves will remove the squatters, the purchase price should bereduced. Msgr. Cirilos refused such offer, returned the earnest money and demanded payment of thewhole price.Later on, Starbright discovered that the lots have been sold to Tropicana.Msgr. Cirilos called for dismissal of the case for lack of jurisdiction based on sovereign immunity from

suit.DFA later on intervened in the case (the DFA always intervenes in cases involving diplomatic immunity)

Issue:W/N the court has jurisdiction over the Holy See

Held:No, the court has no jurisdiction over the Holy SeeIn PIL, when a state or international agency wishes to plead sovereign or diplomatic immunity, it requests


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the Foreign office of the state where it is to convey to the court that it is entitled to immunity.In the Philippines, the practice is to first secure an executive endorsement of its claim of sovereign ordiplomatic immunity.See the case for history of the sovereignty of the Vatican (The Lateran Treaty established the statehood of

the Vatican City)The Philippines has accorded the Holy See the status of foreign sovereign. It had diplomaticrepresentations with the country since 1957.Sec 2 of Article 2 of the 1987 Constitution adopts principles of International Law. Principles of Intl. Laware deemed incorporated as part of the law of the land.Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of thecourts to accept this claim so as not to embarrass the executive arm of the government.

21) Expenses of the UN Anastacio

22) Tinoco Arbitration Beron

FACTS:The government of Costa Rica under Pres. Gonzales was overthrown by TinocoTinocos government continued for 2 years falling soon after his retirementAfter the fall of the Tinoco administration, the old constitution was restored and elections were held underitThe Law of Nullities was passed invalidating contracts with the government during the Tinoco regime aswell as nullifying the issue if 15M Colones currency notes and the circulation of notes of nomination of1,000 Colones bills by the Tinoco government.Great Britain are claiming Costa Ricas indebtedness and concession which both had been annulled by theLaw of NullitiesCosta Rica on the other hand denies liability for the acts and obligation of the Tinoco government

ISSUE:W/N Costa Rica is liable for the liabilities of the Tinoco government

HELD:YES!Under the Principle of Continuity of States, the sate is bound by the engagements entered into bygovernments that have ceased to exist. The restores government is generally liable for the acts of theusurperAlso changes in the government or the internal policy do not, as a rule, affect its position in theInternational Law. Though the government changes, the nation remains, with rights and obligationsunimpairedNon-recognition by other nations of a government claiming to be a national personality, is usually

appropriate evidence that it has not attained the independence and control entitling it by International Lawto be classified as such. But when recognition of a government is determined by inquiry, not into its defacto sovereignty but into its illegitimacy or irregularity of origin, their non-recognition loses evidentialweight it cannot outweigh evidence of the de facto character if a government.

23) Anglo-Norweigian Fisheries Case Calinisan using Fernandez Book

Under a 1935 decree, Norway delimited its territorial waters by draing baselines from point to point onthe islands off its coast (skjaergaard). Since 1911, British fishing vessels had operated within the


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Norweigian Coast, disregarding the decree claiming the waters as high seas as not of the islands weremore than 3 miles from each others. Eventually, the British fishing vessels were seized and condemnedby norweigian authorities for violation of the regulations of the coastal state by fishing in the norweigianterritorial sea.

The dispute was eventually brought to the ICJ by the British Government in 1949, on thecontention that seizure occurred more than four miles off the Norweigian Coast. Both parties agreed thatfour miles could be used as the breadth of the territorial waters, in view of the historic Norweigian claimto four miles.

Upholding Norways claim to use straight baselines, the Court rejected the British Contenetions(1) that the outer limits of Noweigian territorial waters must not be more than four miles from some pointof the shore; and (2) that with the exception of bays, the baseline must be the actual low water mark.

Taking cognizance of the extraordinary geographic peculiarities of the Norweigina coastline ofabout 120,000 islands, rocks and reefs, the court in part ruled:

Some reference must be made to the close dependence of the territorial sea upon the landdomain,. It is the land which confers upon the coastal State a right to the waters off its coasts. It followsthat while such a State must be allowed the latitude necessary in order to be able to adapt its delimitationto practical needs an d local rewuirements, the drawing of base lines must not depart to any appreciableextent from the general direction of the coast.

Another fundamental consideration of particular importance in this case is the more or less closerelationship existing between certain sea areas and the land formations which divide or surround them.The real question raised in the choice of baselines is in effect whether certain sea areas living within theselines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. Thisidea, which is at the vasis of the determination of the rules relating to bays, should be liberally applied in

the case of a coast, the geographical configuration of which is as unusual as that of Norway.

Finally, there is one consideration not be overlooked, the scope of the which extends beyondpurely geographical factors; that of certain economic interests peculiar to a regionm the reality andimportance of which are clearly evidenced by a long usage.

24) North Sea Continental Shelf Cases Fernandez(Federal Republic of Germany v Denmark)

(Federal Republic of Germany v Netherlands)

Facts:The case is about the delimitation of the continental shelf between Germany and Denmark, and between

Germany and Netherlands. (The determination of a States continental shelf, particularly in adjacentcoastal States, is important in ascertaining jurisdiction over the waters that is bordering them incommon)If you look at the map of this region, Germanys coastline on the north (that which faces the North Sea) isgoing inwards the mainland (basically its a concave figure). Netherlands is on one side of Germany,while Denmark is on the other. It is also noticeable that the coastlines of Denmark and Netherlands (theones facing the North Sea) are outwardly curving.The case was submitted to the ICJ to determine the principles or rules of international law, applicable, incarrying out the delimitation of the continental

Documents

Digested Cases on Public International Law